Editorial Committee of The Cambridge Law Journal

Editorial Committee of the Cambridge Law Journal
Conflict of Laws 1921-1971 the Way Ahead

Author(s): K. Lipstein
Source: The Cambridge Law Journal, Vol. 31, No. 1, 1972(B): Jubilee Issue (Apr., 1972), pp. 67-
120
Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge Law
Journal
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68 The Cambridge Law Journal [1972B]
doubtful whether they wished to apply it to questions of the conflict

of laws.10 It has been refuted again and again by eminent writers,11
but until recently its sudden emergence in England under the auspices
of Dicey has been a baffling phenomenon. The researches of Nadel-
mann12 have shown that Dicey formulated his view for the first time
in a review of Piggott's Foreign Judgments,18 developed it as his
" "
General Principle No. 1 in 189114 and then, in 1896, transported
"
it verbatim into his Digest of the Law of England with reference
to the Conflict of Laws."15 10 his indebtedness
Dicey acknowledged
to Holland, whose Elements of Jurisprudence included the statement
that the conflict of laws is in reality concerned with the recognition
by English courts of rights created and defined by foreign law.17
It is difficult to see how Holland reached his conclusion for his
reference to Vattel is spurious and that to Wachter reverses the latter's
thoughts.18 It is possible that Holland owed it to Huber whom he
cited in the second edition of his work.19
In juxtaposition with the common law rule expressed in Holman
10 See Gutzwiller loc. cit., above, note 9.

n Wachter (1841) 24 Archiv jur die civilistische Praxis, 230, at p. 300 and note
146; 25 (1842) 361, at p. 391; Savigny (1849) 8 System des heutigen Romischen
Rechts, par. 361 (5), p. 132, Guthrie's transl. (2nd ed., 1880), pp. 147 et seq.\
von Bar (1889) I Theorie und Praxis des Internationalen Privatrechts, p. 67, par.
23; Lorenzen (1924) 33 Yale L.J. 736; Selected Articles (1947) 1 ; W. W. Cook
(1924) 33 Yale L.J. 745; The Logical and Legal Basis of the Conflict of Laws
(1942) 1; Arminjon, Hague Rec. 44 (1933 II) 1.
12 Ius et Lex, Festgabe fur Gutzwiller (1959) 263 at pp. 276-279.
13 (1885) 1 L.Q.R. 246, 248: "the rules of . . . private international law are based
on the recognition of actually acquired rights, i.e., of rights which when acquired
could be really enforced by the sovereign of the state where they have their
origin."
14 (1891) 7 L.Q.R. 113.
is p. 22; Conflict of Laws (3rd ed., 1922), p. 23 et seq., especially p. 27; see also
(1891) 7 L.Q.R. 113, at pp. 113 et seq., 114. In (1890) 6 L.Q.R. 1, at pp. 3, 5, 11,
14, 17, 18, 19-21, Conflict of Laws (3rd ed.), p. 3 note (e), p. 5 note (f), PP- 12,
15 and note (9), 19, 20, 21, 23, he speaks of the extraterritorial operation of law
or recognition of rights. This phrase is copied from Holland, Jurisprudence
(1880), p. 288; see below, note 18. And see the critique of Pillet, Principes de
droit international privi (1905) 514, note.
is Conflict of Laws, p. VII.
17 1st ed. (1880), p. 288 and note 1 ; Dicey, Conflict of Laws (3rd ed., 1922), pp. 3,
5, notes.
18 Nadelmann, loc. cit. (above, note 12), 277,278; for the revision of these references
in subsequent editions see Nadelmann, p. 277, note 90, and p. 278. The wording
of Dicey's Principle I (1891) 7 L.Q.R. 113, Conflict of Laws (3rd ed., 1922) p.
23: " duly acquired " recalls a similar passage in Pillet, Principes (above p. 68,
note 15) p. 496, no. 273; Hague Rec. 8 (1925 III) 489, at p. 496 who speaks of
*4un droit e'tant
supposd acquis regulierement dans un pays, c'est-a-dire con-
forme*menta la loi en vigueur dans ce pays," which is limited to a well-defined
situation. See p. 497, no. 274; p. 510, note.
I* Praelectiones ad Pandectas II, 1, 3.15, who may have envisaged a doctrine of
acquired rights in order to counter the doctrines of the statutists; see ibid., II,
1, 3.2. Thus the respect for acquired rights may have served as a motive for the
application of foreign law which could not apply proprio motu, as the statutists
would have it, but not as a principle requiring the application of foreign law
replacing a similar doctrine of the statutists. Cf. Dicey (1891) 7 L.Q.R. 113, at
p. 118; Conflict of Laws (3rd ed., 1922), p. 33.


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Editorial Committee of the Cambridge Law Journal

Conflict of Laws 1921-1971 the Way Ahead

This content downloaded from 195.78.108.40 on Wed, 18 Jun 2014 13:11:25 PM

doubtful whether they wished to apply it to questions of the conflict

10 See Gutzwiller loc. cit., above, note 9.

This content downloaded from 195.78.108.40 on Wed, 18 Jun 2014 13:11:25 PM

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